A very common question that we receive from our clients is whether they need a will or whether they need a trust. When our clients ask us this question we will always say that it depends on what you want to accomplish for your family. If it your desire to keep your financial and family affairs private and you want to make things as smooth for your family after you are gone, then perhaps a revocable living trust would be what you would want to consider putting in place.
However, regardless of which option you feel is better to accomplish what you want for your family, every family needs the important disability legal documents in place. These documents include your health care power of attorney, financial power of attorney, and living will declaration. It is extremely important to have these important legal documents in place. These documents give the power to a person of your choosing, usually a spouse or close family members, so that they can make important financial decisions, access medical records, and speak with doctors if you are ever in a position where you can no longer make these important decisions on your own any longer. In addition, these documents also state your wishes when it comes to the withdrawal and withholding of life support systems. The reason that these legal documents are so important is because if you do not have them in place, your family would be required to sue you to have you declared incompetent and to have a judge award a person to make these decisions on your behalf. Unfortunately, this takes an unnecessary amount of time, money, and stress on your family that they would have not been required to go through had you taken the time to put these important legal documents in place.If you only have a last will and testament in place, commonly referred to as a will, your family will have to go through the probate process. This is a court proceeding where the court presides over the process of paying all your final valid debts, taxes, and other claims before distributing your assets to your heirs. Most probate proceedings take anywhere from six months to two years or longer and cost in excess of $20,000 in many cases. In addition, if your bank accounts and real estate are titled in your name at the time of your death, your bank accounts and real estate titles may be frozen, and your family members will not be able to access those accounts or sell the real estate and will have to wait on the court to authorize your executor/administrator to sell the home and access the financial accounts.
However, on the other hand, if you have a trust, and all of your assets are properly titled in the name of the trust when you die, then none of your assets will be frozen. The financial accounts and the title to your real estate will never be frozen, and your family members will have immediate access to these assets. In addition, there will be no probate court involved and presiding over the distribution of your assets to your loved ones and the payment of your final bills and funeral expenses. Essentially, a trust will save your loved ones time, stress, cost, attorney fees, and make things extremely smooth for your loved ones after you are gone.